How to Appeal Your Veterans Benefits Denial to the Court Interactive Classroom

Step Five: Other Options Instead Of Filing An Appeal With The Court

If you have received a decision by the BVA on your claim for VA benefits and you are unhappy with that decision, you have four options you can pursue to try and change that decision. The first is to appeal to the Court. We have already learned how to appeal to the Court in this classroom. This is your best bet for success.

However, you have three other options you may wish to pursue. You may:

You have 120 days from the date the decision was mailed to you (as shown on the first page of the decision) to file a Notice to Appeal with the Court. There is no time limit for filing a motion for reconsideration or a motion to vacate with the Board. However, if you are interested in filing these motions, you should do so within 120 days if you want to preserve the time limit to later appeal to the Court (in the event the BVA denies your motion).

If the BVA denies your motion for reconsideration or your motion to vacate, and you filed that within 120 days, you then have another 120 days from that denial date to file an appeal to the Court.

Remember, even if you have a representative, it is your responsibility to make sure that your appeal to the Court is filed on time.

What if I am active duty? Do these same time limits apply?

The 120-day time limit to file a Notice of Appeal does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (for example, due to combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run.

How do I file a motion for reconsideration?

You can file a motion asking the BVA to reconsider any part of its decision by writing a letter to the BVA explaining why you believe that the BVA committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that the letter be as specific as possible. A general statement of dissatisfaction with the BVA decision or some other aspect of the VA claims process will not work. If the BVA has decided on more than one issue, be sure to tell them which issue(s) you want reconsidered. Issues not clearly identified will not be considered. You should send your letter to:

Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of the BVA’s decision.

How do I file a motion to vacate?

You can file a motion asking the BVA to vacate any part of its decisions by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. An example of a denial of due process would be something such as you requested a personal hearing and the VA failed to schedule one. Another example would be if the VA failed to issue a Statement of the Case.

You can also file a motion to vacate any part of the BVA’s decision on the basis that the Board allowed benefits based on false or fraudulent evidence submitted by or on behalf of the appellant. Send this motion to the address above for the Director, Management, Planning and Analysis, at the Board.

Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal to the Court, you must file your motion within 120 days of the date of the Board’s decision.

How do I file a motion based on clear and unmistakable error?

You can file a motion asking that the Board revise its decision if you believe that the decision is based on “clear and unmistakable error” (CUE). You should send this motion to the address above for the Director, Management, Planning and Analysis, at the Board. You should be careful when preparing such a motion because it must meet very specific requirements. You get only one chance to file a motion based on clear and unmistakable error at the BVA.

By asking for CUE, you are saying that the result would have been different had it not been for the error made. In other words, that the correct facts were not before the Board OR that the statutory or regulatory provisions that existed at the time were incorrectly applied.

For example, a clear and unmistakable error may be:

A rating reduction or a rating severance where there was a failure to apply or follow requirements of a regulation

A requirement of a nexus for chronic diseases diagnosed in service

A misapplication of regulations for granting service-connection based upon presumption of aggravation

CUE motions are only allowed if the BVA decision is no longer Court reviewable. (CUE’s are final decisions—they can never be appealed to the Court.

We strongly recommend seeking help from a qualified representative or attorney before filing this type of motion.

Remember, the Board places no time limit on filing a CUE review motion, and you may do this at any time. However, if you also plan to appeal to the Court, you must file your motion within 120 days of the date of the Board’s decision.

Do I need a lawyer to file a motion?

No. You can always represent yourself in any claim before the VA, including the BVA. If you need help you may want to contact your local VSO. However, we strongly recommend seeking help from a qualified representative or attorney before filing a CUE review motion.